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Docket No. ND02-00387

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-GSMFA, USN
Docket No. ND02-00387

Applicant’s Request

The application for discharge review, received 020214, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Prior to discharge was told by chain of command that I would still be eligible for all VA benefits.  Last year I applied for the GI Bill that I invested $1200 into and was denied because discharge was general under honorable conditions.  I had 42 months and 21 days which meets the 36 month requirement.  My service in the Navy consisted of a Letter Of Commendation, elected by the Engineering Department twice to go before the board of Junior Sailor of the Year, high evaluations, and the Good Conduct Award.  I took a lot of pride in everything I did in the Navy, in fact I took so much pride that I burnt myself out in the end.  This is a part in my life that I would really like to correct, thank you very much for your time and attention.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of Eligibility for Benefits Based on Type of Discharge
Copy of Good Conduct Award dated July 26, 1998
Copy of DD Form 214
Copy of Letter of Commendation
Character reference from Senior Pastor dated March 12, 2002

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	950718 - 950726	COG

Period of Service Under Review:

Date of Enlistment:  950727		Date of Discharge:  990217

Length of Service (years, months, days):

	Active:    03  06  21
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  11			AFQT:  56

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  1.00 (1)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NEA, SSDR, GCM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980810:	NJP for violation of UCMJ, Article 134: Drunkenness - incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor and violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Restriction and extra duty for 30 days, reduction to GSMFN.  Reduction suspended for 6 months.  No indication of appeal in the record.  [Extracted from Commanding Officer's letter dated 26 Feb 99.]

990125:	NJP for violation of UCMJ, Article 128: Assault.
	Award: Forfeiture of $537 per month for 1 month, restriction and extra duty for 30 days, reduction to GSMFA.  No indication of appeal in the record.

990204:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

990204:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990226:	Commanding Officer, USS MOOSBRUGGER (DD 980) directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): GSMFA (Applicant) has shown little success in adapting to the U.S. Navy and has not displayed the potential for future service, assault consummated by a battery is a serious offense causing the degradation of moral, discipline, and good order, and can not be tolerated in the United States Navy.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990217 general (under honorable conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant states that due to the characterization of his discharge, he is not eligible for the GI Bill.  The Applicant is requesting an upgrade to the characterization of his discharge so that he can receive these benefits.  The Veterans Administration determines eligibility for post-service benefits, not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Board found the Applicant was of sound mind when he committed his misconduct, which included incapacitation for duty due to intoxication, unauthorized absence and assault.  While he may feel that he had worked so hard that he "burned out", the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The discharge and the characterization of service were appropriate.  Relief on this basis is denied.

The following is provided for the benefit of the Applicant.  Normally, to permit relief, the discharge or characterization of the discharge issued had to be improper or inequitable. There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Relief denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9445/A9217/A9203/A9317/A9229/A9221